MBR ACRES LIMITED & Ors v FREE THE MBR BEAGLES & Ors

Permission to amend should be granted only where the proposed claim has a real, more-than-fanciful prospect of success and the amendment offers tangible benefit proportionate to its effect on the litigation and available resources.

An unlawful-means conspiracy claim requires clear particulars of the alleged combination. Proof that several people committed similar torts, or shared a broad objective, does not itself establish concerted action to injure the claimant. The facts supporting any inference of combination and intention must be pleaded.

The claim arose from continuing protests concerning the activities of the first and third claimants. The claimants sought permission to re-plead their case and add an unlawful-means conspiracy claim against numerous named defendants and persons unknown.

The proposed conspiracy relied largely on torts already pleaded against individual defendants, together with alleged offences and an allegation that the defendants had conspired and combined to harm the claimants. The court considered whether the proposed claim was adequately particularised, had a real prospect of success, and was proportionate to the existing litigation.

1. Application to amend. Applying the principles identified in Elite Property Holdings v Barclays Bank [2019] EWCA Civ 204, the court had to assess both whether the proposed claim had a real, rather than fanciful, prospect of success and whether permitting it was consistent with proportionate and fair conduct of the litigation.
2. Conspiracy pleading. The proposed pleading contained only a bald assertion that the defendants had “conspired and combined together”. It did not identify the facts from which the alleged combination was to be inferred. An inferential case must set out the essential supporting facts so that the court can assess its prospects and defendants can know the case they must meet.
3. Unlawful-means conspiracy requires a combination, unlawful means, knowledge of unlawfulness, intention to injure, an overt act in pursuance of the combination, and loss or damage. The combination may be express or tacit, but the conspirators must share the essential object and be sufficiently aware of the surrounding circumstances. The principles in Kuwait Oil Tanker Co v Al Bedar [2000] 2 AllER (Comm) 271 and Lonrho Ltd v Shell Petroleum Co Ltd [1982] AC 173 were applied.
4. Proof that multiple defendants committed torts during a protest, or shared the broad aim of ending animal research, did not itself establish concerted action to cause damage by unlawful means. Matters such as timing, circumstances, connections, agenda and purpose might support an inference, but the pleading did not identify them adequately.
5. Proportionality. The potential benefit of the conspiracy claim was limited and largely overlapped with the existing tort claims. It would substantially increase disclosure, evidence, cross-examination, cost and trial complexity. The possible recovery of a damages shortfall was speculative and likely to be dwarfed by the additional costs.
6. The suggested injunction could not be framed simply as a prohibition on criminal offences. It would have to identify clearly the acts prohibited. Much of the proposed protection, including conduct amounting to harassment or watching and besetting, could potentially be addressed through the existing causes of action.
7. Permission to add the conspiracy claim was refused for inadequate particularisation and, independently, as disproportionate. Permission to add the twenty-seventh defendant was therefore also refused. Permission to appeal was refused because the proposed grounds had no real prospect of success and there were no other compelling reasons.

The judgment records an earlier interim injunction and case-management orders, including the injunction judgment of 10 November 2021, [2021] EWHC 2996 (QB). The present court refused permission to amend and refused permission to appeal.